Recently,
Albany Law School held a conference in New York City on the
future of copyright, and one academic panelist bemoaned the
fact that we now have a generation of people, weaned on the
Internet and digital media, who think they can just grab anything
that’s out there and create anything they want. He was followed
by another panelist who thought that not only was this attitude
not a problem, but it represented the biggest advance in creativity
since the invention of the printing press.

That’s a pretty big spread.

Using somebody else’s work in your new work—the whole “remix
culture” thing—falls under the general category of “appropriation
art.” There has been appropriation art around since the second
caveman copped the first caveman’s cave drawings. It’s a fancy
way of saying “collage.” And with deep roots in the cubist,
dada, and pop-art movements, appropriation art may be the
predominant “serious” art movement in the world right now.
I’ve given a couple lectures at the School of the Museum of
Fine Arts in Boston recently, and the vast majority of the
work coming out of there is, one way or the other, appropriation
art.

There’s a little problem with all this, and it’s called copyright
law. Every creator owns the copyright in his/her original
work upon the work’s creation. Appropriation art, then, also
looks like a fancy way of saying “infringement.” Which means
we’ve got the major art movement in the world in a high-speed
head-on crash with the law. A good thing for lawyers, I guess,
but not for anybody else.

A recent court decision from the 2nd Circuit federal appeals
court may have advanced a solution to this train wreck. Superstar
appropriation artist Jeff Koons appropriated a photo of a
woman’s legs from a fashion magazine photo spread, and stuck
them, along with images of other women’s legs, on a huge painting
that included hot fudge sundaes, donuts and Niagara Falls
(don’t ask). Koons got a $2 million commission for his work.
The fashion photographer had been paid $750 by the fashion
magazine. Figuring there was some good money in it, the photographer
sued.

Koons relied on the doctrine of fair use, an exception to
the general rule that infringement is bad. Sometimes, using
somebody else’s work for something new is in society’s interest;
sometimes using somebody else’s work advances the purpose
of copyright law: the advancement of the arts. The
concept of fair use has been around for as long as copyright
law has been around, and it’s always been a big smelly problem.
Courts come up with rules and guidelines and principles about
fair use, and then a new situation comes along that proves
all of them to be absurd. Trying to decide something as grand
as “what’s in society’s interest” in terms of artwork can
be a subtle and nuanced exercise, and the courts are not a
good place for subtlety, as judges are rarely good with nuance.

So courts have been screwing up fair use for years, but lately
they seem to be zeroing in on some interesting, novel, and
broad principles, and the Koons decision is the latest bright
light in this process.

About a dozen years ago, the Supreme Court ruled that 2 Live
Crew’s hideous version of “Oh, Pretty Woman” was a fair use
of Roy Orbison’s song because it was, to some extent, a parody
of the original. Parodies are essentially commentaries, and
the Court ruled that a commentary about an existing work that
uses parts of that existing work was a classic type of fair
use. The Court also talked a lot about the need for a work
to be “transformative” to qualify for a fair use “get out
of jail free” card. No fine point was put on this concept
of “transformative works,” but the decision was clearly an
invitation for lower courts to flesh out the concept.

Which is what the Koons court did. The court defined a “transformative
work” as one that doesn’t supercede the original, but rather
adds something new to it, with a different purpose and meaning.
The court then ruled that Koons’ painting had an entirely
different purpose than the photograph, and that Koons’ use
of the actual photograph was essential to that purpose. Then
the court looked at a couple of other factors and decided
Koons’ appropriation was a fair use. Wow.

Does this give the appropriation artist a license to steal?
Is music sampling suddenly OK? Is “remix culture” legal?

The short answer, as with most questions regarding copyright
law, is “it depends.” Fair use is still complicated, it’s
still cloudy and unpredictable, and it probably always will
be that way. But the 2nd Circuit has opened a door by providing
a legal rationale for bona-fide appropriation art that makes
a lot of sense. The decision is good for art and good for
society.

It’s such a pleasure to be able to write about something positive,
and not just bitch about stuff like I usually do. Yippee!